How law produces difference

One of the great areas of interest in the field of liberal jurisprudence and traditional legal philosophy has been how liberal law manages social differences.  Indeed, it was a topic of paramount concern for many liberal legal philosophers.  Much of their work endeavored to examine how law could operate as a coercive system of social norms which (apparently) were obeyed by a significant proportion of citizens, including those who might have substantive moral disagreements with several laws, or indeed with the legal system as a whole.  Arguably, this tradition can be traced back all the way to Hobbes, whose political authoritarianism may well have been motivated by the moral relativism implied by his materialistic metaphysics.  More contemporaneously, this approach has found expression in the work of H.L.A Hart, whose classic book the Concept of Law addressed the reality of moral pluralism in a more robust way than the earlier work of J.L.A Austin.  The most notable example of this is Hart’s distinction between those who feel obligated to obey the law out of respect for its substantive moral content and those who feel obliged to obey it out of social or directly coercive pressure. Fuller also picks up on this problem in the final chapter of The Morality of Law when discussing whether the law, if it possesses an internal morality, can act as a neutral arbitrator in debates about substantive moral issues (such a the righteousness of using contraception). Joseph Raz has forcefully argued that individuals have no moral obligation to obey the law and that they may rightfully engage in civil disobedience if they feel that are not active participants in political processes which concern them.  Concern about disagreement in a democratic society, and the social differences which engender it are at the heart of John Ely’s Democracy and Distrust. More recently, Scott Shapiro has developed an ambitious positivist theory of law which argues that the exercise of legal authority is a technical “activity of social planning” which is necessary in part due to the plurality of human differences.

Thus we begin with the simple fact…that human beings are planning creatures: we not only have the capacity to act purposively, something we share with nonhuman animals, but also the ability to form an execute plans. We saw that our need for planning arises from the complexity of our goals, the limitations of our abilities, and the pluralism of our values and preferences.  In order to achieve complicated goals, we must assemble long sequences of actions correctly; in order to act together, we must be able to coordinate many of our actions with one another.

These liberal theorists understood the law as having an important function in managing social difference; so much so that this function could be theoretically linked to the very concept of law. Indeed, for some such as Hart and Shapiro, this could be understood as the chief function of law.  This becomes problematic when we turn to the point of departure from which these theoretical claims to operate.  The tendency, going back at least as far as Kelsen, is for liberal legal theorists to conflate purity or rigor of concept with the standpoint of objective legal technocrats.  As this article will demonstrate, the tendency for actual legal technocrats and political actors to adhere to a technical ideology fosters the production of legal difference.

Law and the Production of Difference

One of the virtues of modern socio-legal and critical legal thinking has been to demonstrate that law does not simply function as a way of resolving conflicts flowing from social differences. Critical and socio-legal theories demonstrate how law can and does play a fundamental role in producing those same differences, often in accord with a technical ideology.

Law operates as both a constitutive and reactionary social phenomena which directly produces and responds to given practices. One way law plays an immensely constitutive role is in the production of social difference. This can be expressed as a paradox of which emerges as a result of the technical mindset being applied by legal technocrats. technical mindset is the belief that all things are inherently separated from one another, that the universe consists of what Heidegger called “beings in Being.” The technical mindset contributes to the development of social and legal institutions oriented around the belief that the best way to control things is to divide and parcel them up.  This is as true of human beings as anything else.  To control individuals, legal technocrats must develop legal categories which are to coercively applied by carceral authorities.  In the process, the individuals caught in the authoritarian matrix of law often come to identify with the legal categories applied to them, and to appropriate them as part of their identity. The thief, the drug user, and the illegal immigrant are all seen as deviations from the legitimate categories law operates uphold.  But it is more accurate to say that they are the creations of a legal system which promotes total homogenization through the categorization of particular differences it then attempts to manage and control, often with all the nihilistic viciousness associated with individuals who engage in self-destructive practices.

Conclusion: Law and Violence

Law is involved in a losing battle with itself through the production of difference. While liberal societies may indeed be fluid in some respects, and thus “reasonably just” relative to others, law as a technically oriented institution must perpetuate the established order through establishing homogenizing norms. These homogenizing norms often reflect the prevailing technical ideology, and in the exceptional instances where these are challenged naked force still exposes itself as a crucial foundation for re-establishing legal authority.  In these instances, what Roberto Unger calls the “false necessity” of these legal categories, and the authority of law to constitute them through processes of reification, is exposed. The application of coercive techniques to those seen as deviating from the law reinforces the technical ideology which is appealed to as a normative justification for the existence of the legal system.